By Adrian Mullan

In what many may see as a local David versus Goliath legal battle the first volleys were fired at the Crown Court in Omagh on Monday in a case in which chip shop owner, Ignatius Sally, is objecting to the renewal of licences to the new £4 million Sally O'Brien's (currently under construction) at Omagh's John Street and Church Hill corner.

Mr Sally is a next door business neighbour of Sally O'Brien's owned by John and Una McGirr.

In a case which is likely to run for at least two more days, the opening salvoes were uncompromising, as barristers for the both parties set out their respective cases.

Amongst other things, Mr Sally has objected to the renewal of the licence for Sally O'Brien's on the grounds that procedure has not been followed and that the applicant is not a fit person to hold a licence, and that the kind of premises specified in the application is not that for which the licence was granted.

Stuart Beattie, Counsel, acting for Sally O'Brien's and instructed by Fahy and Co., Solicitors, said that there had been no objections to the renewal application from the statutory bodies particularly, the police.

He said that when complete the premises will create some 30 full-time jobs and twice as many part-time posts..

However, Michael Laverty QC,

acting for Mr Sally, and instructed by Logan and Corry solicitors, from the outset, raised questions as to the developer's responsibilities with regard to the erecting of notices.

Mr Laverty claimed that one of the notices, that on the John Street face was not legible from the footpath and that that, on the Church Hill face had no pedestrian access to it and would have to be read from across the street. He said that that did not amount to proper compliance with the requirements.

John McGirr said that the notices were properly and prominently displayed and that he had taken steps to have a notice which was previously displayed in the window of the present site office moved to a more prominent position on the hoarding around the site. He said he visited the site two or three times a week to ensure that the notices hadn't been vandalised or obscured.

Mr Laverty then claimed that in 2004 Sally O'Brien's changed its trading status to become a limited company, but that whereas the company now ran the business, there was no evidence of protection orders or transfer of licence. He suggested, therefore, that the company had been trading illegally since 2004.

Counsel for Sally O'Brien's cited case law where a previous business had acted in the same way, and that Lord Justice McConnell had found that it was legal.

Judge McFarland suggested that that case might be different because both parties were one hundred per cent in the ownership of a parent company.

Judge McFarland asked Mr McGirr if there had been any discussions or agreements between him and the company at the change over, Mr McGirr said there had not.

The judge also asked if Mr McGirr had received anything for transferring to the company.

Mr McGirr commented, "Not to my knowledge." He added that there had been no mention of transferring the licence to anyone else.

The judge commented that the situation was like a "Country dog's dinner."

Mr McGirr, under cross-examination, by counsel for the objector said he could not say for sure whether or not he is an employee of the company. He said he employed accountants and solicitors to advise him, and insisted he had nothing to hide.

His barrister intimated he could rely on other law which would protect his client as his business is a substantial going concern and that the licence has not been surrendered or annulled.

Mr McGirr intimated that he had been advised by his accountant that it would be more tax efficient to have the business registered as limited company. He didn't consult with any body, other than his accountant about the move.

Counsel for Sally O'Brien's said Mr McGirr had been trading for some 24 years, he said that in that time he had two convictions one in 2005 for selling liquor on Christmas night the previous year and before that in 1994. Mr McGirr said in respect of the latest conviction that he, in common with the management of many other hostelries in the town, had been prosecuted after the appointment of a new police chief superintendent who clamped down on what had been a tradition in the area of opening on Christmas night. He said that the conviction in 1994 was for permitting persons on the premises outside of business hours.

Counsel for the objector claimed that Mr McGirr had created a smoking area following the smoking ban last year but that whereas patrons took drink to that area, the area was not licensed for the consumption of alcohol.

Mr McGirr said he had opened a smoking area in a former barber's shop next to his premises in April 2007. He said that prior to having work done he consulted with the council's smoking advisory officer. He said he removed the roof of the building so that it would be an open space and knocked a doorway through to the main premises. He said that while the situation was not perfect, the alternatives were to have people smoking on the street or to close down. He said that to have put the patrons from the night club on to the street to smoke would have caused chaos. He said that the council officer was not only of the opinion that the smoking area complied with legislation, he asked if he could used it as an example to encourage other smaller premises to comply.

He said that patrons did take drink into the area but whereas his staff tried to stop them girls in particular did not want to leave drinks unattended for fear of 'spiking' which he said was a major concern throughout the licensing industry. He said the same situation prevailed with regard to the toilets.

The judge observed that Mr McGirr was not getting the toilets area licensed.

Counsel for the objector put it to Mr McGirr that he would have known of the legal requirement to have the smoking area licensed if drink was to be taken there.

Mr McGirr said he felt now that he should have known and that later on, he did know.

Counsel for the objector suggested that Mr McGirr had received a circular from the Vintners Association warning him of the need for smoking areas to be licensed.

Mr McGirr said he couldn't recall that particular circular.

Mr Laverty asked him, "When did you become aware that a smoking area should be licensed?"

Mr McGirr said that when the order came in into effect he and many other publicans were thinking "Can I provide a smoking area, not, can I provide a licensed smoking area."

Mr Laverty put it to him that in not ensuring that the smoking area was licensed, he "Didn't give a hoot about the law."

Mr McGirr said that that suggestion was wrong and that he is a very responsible business man and not someone trying to ride rough-shod over the law.

On further cross examination it was discovered that whereas the smoking area had a door which opened on to John Street, it was kept locked.

Mr Laverty asked Mr McGirr from what premises he conducted his off-licence business during renovations to his main premises during 1999. Mr McGirr said he carried on the business in premises he leased from Mr Sally at the time. In response to questions from Mr Laverty he said that the premises were not licensed at the time and he said, "That was not an issue at the time."

The case which took up much of the day on Tuesday was adjourned for further hearing at Dungannon Crown Court on Wednesday of next week.